“I am the mother — how could the child be away from the mother? They should obviously stay with me.”

“I am the father, and I am the main breadwinner. In terms of financial capacity, I am clearly the one able to raise the child.”

“Does whoever earns more get custody of the child?”

The Question of Child Custody: “Who Actually Raises the Child?”

This is one of the main points of conflict between spouses when a relationship breaks down. It usually involves issues such as the child’s living expenses, education costs, medical expenses and visitation rights.

However, in Australia, family law generally does not allow either party to have 100% custody, because both parents have equal parental responsibility. In addition, if a family has multiple children, the children are generally not separated from one another. Many aspects of how custody matters are handled differ from Chinese judicial practice.

Let’s look at this by category below:

This article walks through the differences in child custody between China and Australia.

Guardianship or Custody

China

In China, custody can be arranged when a couple divorces either by agreement or by court decision. This is often the familiar question of “with dad or with mum”, and it may result in the child staying with one parent and having no further contact with the other.

Australia

In Australia, the basic principle of family law is that each parent carries equal Parental Responsibility. Parental responsibility refers to the rights, duties and responsibilities of parents toward their children. Each parent generally has parental responsibility for their child, regardless of whether they are married, in a de facto relationship, have never been in a relationship, or otherwise. This means either parent can independently make decisions about the child.

If parents wish to jointly make major long-term decisions relating to the welfare and upbringing of their child, they should enter into an agreement or apply for a court order to share parental responsibility equally. “Major long-term issues” include matters such as where the child will go to school, significant health decisions, and religious beliefs.

Basic Considerations in Custody Decisions

China

Custody decisions take into account the interests of both the parents and the child. When deciding which parent the child will live with, the court considers the basic circumstances of both spouses, such as income level and education, and also takes the child’s views into account. Where the underlying conditions are roughly comparable, custody tends to be awarded to the mother.

Australia

In Australia, family law makes it virtually impossible for either party to obtain 100% custody, because acting in the best interests of the child requires both parents to maintain a good relationship with the child. Custody is therefore stripped from a parent only in exceptional circumstances. The law will prohibit contact between a parent and the child only where such contact would be harmful to the child.

Overall, when considering custody, the entire focus sits on whether the arrangement is in the best interests of the child. The court presumes that both parties share equal responsibility for caring for the child, and does not favour the mother or the party with higher income or education.

Custody Agreements or Court Orders

China

At the time of divorce, spouses can agree on arrangements for the child’s care, and if they cannot reach agreement they can submit the matter to the court.

Australia

In Australia, divorce, property settlement and parenting arrangements are three separate matters. It is not necessary to reach agreement on all of them before a divorce can be granted. For example, if the parties agree on property but not on parenting arrangements, they can resolve the property settlement by agreement first and deal with parenting arrangements separately, without affecting the divorce application.

If the spouses can reach agreement on the child’s parenting arrangements, they can either:

– sign a Parenting Plan; or

– apply for consent orders from the court.

So what are these different types of agreements?

Parenting Plans and Consent Orders

A parenting arrangement, known as a Parenting Plan, is not legally binding. It is more like a “gentleman’s agreement”, setting out matters such as how much time each parent spends with the child, and other issues relating to parental responsibility. This is because, in Australia, there is no concept of awarding absolute custody to one party; the court considers both parents to have equal parenting rights.

It is important to note that only in very extreme circumstances (for example, where one party has a serious criminal record or a history of family violence) will the court grant absolute custody to one party or remove the other party’s right of visitation, and such cases are very rare. Generally, the child will spend roughly equal time with each parent — for example, staying with the mother during the week and visiting the father on weekends and during holidays. However, for younger infants and toddlers, given breastfeeding needs, living with the mother is more in the child’s best interests, and the father is granted visitation rights.

If you want a legally binding parenting agreement, that means consent orders. Consent orders cannot be arranged arbitrarily — their content must be in the best interests of the child and cannot grant absolute custody to one party; otherwise the judge may require the content of the consent orders to be amended.

If the parties cannot reach agreement on parenting arrangements, or if one party refuses care or visitation, it is possible to commence proceedings in court and ask the judge to make a fair determination.

In short, within a family, everyone hopes the child will grow up in the company of both parents. But when a couple faces irreconcilable differences and must separate, child custody issues need to be considered from multiple angles — including support and time spent together — so that the child can receive the greatest possible love and care from both separated parents.

For matters involving custody agreements and the like, we recommend seeking a professional lawyer to review and explain the specific details for you.